Saturday, November 19, 2005

Internet governance & ICANN

The debate over ICANN’s role and political oversight has already produced several years of increasing politicization of ICANN and its functions. Already, alternative root server systems such as ORSN in Europe have formed to provide a check on U.S. authority over the root zone. Most governments believe it is inconsistent for the US to warn of “government intervention” in the Internet while reserving to its own national government special and exclusive powers. The U.S. role is a provocation to other governments, encouraging them to seek equal sovereign rights in the oversight of ICANN.

I think it is time to frame the debate.

One of the destructive myths surrounding the current dialogue is that there is currently no political oversight over the Internet. In many countries, but especially the US, the debate on oversight has been framed as a clash between the option of an Internet free from government and an Internet that is “run by the United Nations.”

That is a false dichotomy, for two reasons. First, it confuses narrow Internet governance (overseeing ICANN) with broader oversight (“running the Internet”). Second, it ignores the fact that political oversight of ICANN exists, but is unilateral: a single government (the US) actively supervises ICANN.

Today there are no formal mechanisms for broad political oversight of Internet governance. Creating and implementing new institutions for these purposes, assuming that it is desirable, would require sweeping changes and long-term negotiations among the stakeholders of the Internet Governance Forum (IGF) announced at the recently concluded WSIS in Tunis.

ICANN’s governance, on the other hand, is a more manageable issue and needs to be addressed in the near term.

I believe that unilateral U.S. oversight on ICANN is troublesome and needs to be changed. But there are two very different ways to do this. One way is to bring more governments into the supervisory process. Here, the danger is that ICANN could end up as one more of the numerous UN talking shops.

Another way is to remove the U.S. government from the picture. In other words, one can de-nationalize ICANN and find ways of making it accountable that do not require traditional inter-governmental supervision.

The de-nationalization is probably a better option than internationalization. Moreover, the existing mechanisms of U.S. political oversight can be modified to move toward de-nationalization without threatening the effective operation or freedom of the Internet.

The US exercises control over ICANN through four primary methods, its MoU with ICANN, its IANA (Internet Assigned Numbers Authority) contract with ICANN, its authority over the DNS root and its contract with Verisign.

While agreeing that US is oversight is biased, non-transparent and bound by US executive branch policy objectives and does not reflect interests of other governments, I believe, given the constellation of political and legal forces, to expect the US to give up control over ICANN is unrealistic.

A realistic option has been recommended by the WSIS Civil Society Internet Governance Caucus which has been explored by Milton Mueller of the Internet Governance Project.

The MoU between the Department of Commerce and ICANN, which is set to expire in September 2006 and the US government, in active consultation with all international stakeholders, should insert a set of conditions into ICANN’s MoU (these could include multi-stakeholder Board participation, independent financial audit, process for extraordinary appeal, public policy requirements regarding privacy rights and trade rules) that would prepare it for release from U.S. oversight. Once the new conditions of the MoU were met, the MoU would be allowed to expire and would not be replaced with any specific governmental oversight organization. Accountability would rely instead on applicable law and on improvements in process and representation within the broader ICANN regime.

Once it was no longer combined with the power to guide and direct ICANN’s policies and management, U.S. policy authority over the root could become less important.

The WSIS should recognize this and focus more on bridging the digital divide rather than who ‘runs the internet’.